Docket: IMM-2499-14
Citation:
2015 FC 309
Ottawa, Ontario, March 13, 2015
PRESENT: The
Honourable Mr. Justice Zinn
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BETWEEN:
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JOYCE NAKATO NAKAWUNDE
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Applicant
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and
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THE MINISTER OF CITIZENSHIP AND IMMIGRATION
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Respondent
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JUDGMENT AND REASONS
[1]
This is an application for judicial review
challenging a negative decision on Ms. Nakawunde’s Pre-Removal Risk Assessment
[PRRA] application.
[2]
For the reasons that follow, I find that the
decision under review is reasonable, and therefore this application must be
dismissed.
Background
[3]
The applicant is a citizen of Uganda. Her
22-year old son, father and two sisters live in Uganda and she has three
siblings who are Canadian citizens.
[4]
The applicant first came to Canada in January
1999 on a student visa, which was valid until June 2004. She was granted
another student visa valid from December 2004 until October 2006. At no point
did she seek refugee protection in Canada.
[5]
In May 2003, Ms. Nakawunde gave birth to a
daughter, Sanyu, in Canada. The child’s father is a Ugandan who was living in
Canada at the time, but he later returned to Uganda.
[6]
Ms. Nakawunde has stayed in Canada since her
visa expired in October 2006, without written authorization or attempting to
regularize her status. The respondent became aware of her lack of status in
March 2011, and a removal order issued on June 1, 2011.
[7]
Ms. Nakawunde applied for a PRRA on June 15,
2011. The PRRA was refused on June 11, 2012, and the applicant was granted
leave to judicially review this decision on February 22, 2013. The PRRA
application was returned for redetermination by a different officer on consent
of the respondent.
[8]
In her PRRA application, Ms. Nakawunde asserts
two bases for risk upon return to Uganda:
1.
Sanyu’s father wants Sanyu to undergo female
genital mutilation [FGM] and he will kill the applicant because she has refused
to do this; and
2.
Ms. Nakawunde is homosexual and fears harm at
the hands of Sanyu’s father, the Ugandan government, and Ugandan society in
general.
[9]
The PRRA application was refused for the second
time on June 7, 2013, because the officer concluded that there was insufficient
evidence to establish that the facts asserted by the applicant would put her at
risk in Uganda.
[10]
The officer gave little weight to a letter from
the applicant’s sister stating that Sanyu’s father has made multiple verbal
threats to have Ms. Nakawunde killed if she refuses the FGM, because the letter
was unsigned, the statements were unsworn, uncorroborated, and showed a poor
level of detail. The officer also gave little weight to a letter from Ms.
Nakawunde’s brother in which he writes that his sister is a lesbian, she has
told him she was not interested in men, and she had a child in 2003 to cover up
her homosexuality and not embarrass her family. The officer noted that the
brother’s letter was unsigned and showed a poor level of detail. The officer
made the following statement regarding the evidence of the applicant’s sexual
orientation:
I find the reasons he has given for
justifying the applicant’s decision to have a child to be speculative.
Notwithstanding, I find the existence of a past heterosexual relationship to
be relevant to the matter at hand as it contradicts the claims made by the
applicant regarding her sexual orientation. [emphasis added.]
[11]
The officer gave no weight to a letter from Ms.
Nakawunde’s counsellor which described the threats from Sanyu’s father and the
treatment the applicant would receive in Uganda as a lesbian woman and which
further provided an explanation for her inability to provide proof of her
sexual orientation. This letter was discounted because the counsellor’s
information was not first-hand information.
[12]
The officer considered a letter authored by the
applicant herself. The officer “did not discount the
facts” it contained, but noted that the letter is not from a neutral
source and “contains unsworn statements that have not
been corroborated by independent evidence.” The applicant stated that
in Uganda there are no laws to protect lesbians, being a lesbian is a criminal
act punishable by imprisonment or death, and society shuns lesbians. She
stated that she fears Sanyu’s father because he has threatened and harassed her
while in Canada and in Uganda, he has harassed and threatened her sisters, and
broken the windows in her father’s home. He was arrested for the incident at
her father’s home but he paid a bribe to the police and was not charged. The
officer noted that Ms. Nakawunde did not provide a police report with respect
to that incident or any objective evidence to corroborate that Sanyu’s father
harassed her sisters. She also alleged in her letter that wealthy people, such
as Sanyu’s father, could get away with crimes in Uganda because of their money
and connections. The officer found this to be purely speculative and not
supported by any evidence.
[13]
With regard to Ms. Nakawunde’s sexual
orientation, the officer made the following finding:
The applicant has not recounted with a
reasonable amount of detail any experiences or events that would support her
discovery and/or realization of her sexual orientation. The applicant has not
provided any documentary evidence to indicate any involvement, past or present,
in a relationship with a member of the same sex.
[14]
The officer gave little weight to Ms. Nakawunde’s
letter, as it was not “in and of itself sufficient
objective evidence to establish any risk to the applicant from her daughter’s
father on the basis of her gender or from Ugandan society on the basis of her
sexual orientation.”
[15]
Lastly, the officer rejected the country
condition evidence from the applicant, specifically the United States
Department of State report, because it was “generalized
in nature and [did] not establish a linkage directly to the applicant’s
personal circumstances.” The officer acknowledged that Uganda currently
faces problems with regard to human rights and there is social intolerance and
hostility toward homosexuals and the police are indifferent. The UK Home
Office reports that “LGBT persons are subject to
societal harassment, discrimination, intimidation, and threats to their
well-being” and that this has been exacerbated by the Anti-Homosexuality
Bill and surrounding rhetoric. The officer acknowledged that homosexual acts
are illegal in Uganda and may be punishable by life imprisonment, but noted
that no person has been convicted.
[16]
On the application as a whole, the officer came
to the following conclusion:
In considering this application against the
consolidated protection grounds, I do not challenge the applicant’s credibility
with regard to her sexual orientation. She may well be homosexual.
However, I find that the applicant has not produced sufficient persuasive
evidence that would discharge her legal burden. More specifically, I am not
satisfied with the ability of evidence she has tendered to prove that, as
required on a balance of probabilities, she is homosexual which would place her
personally at risk on return to Uganda. [emphasis added.]
[17]
On this basis, the officer concluded that Ms.
Nakawunde did not meet the requirements of either section 96 or 97 of the Immigration
and Refugee Protection Act, SC 2001, c 27.
Issues
[18]
The applicant frames the issues in dispute, as follows:
- Did the officer
fail to consider the evidence cumulatively?
- Is the reasoning
on the applicant’s sexual orientation incoherent or did the officer make veiled
credibility findings on sexual orientation?
- Did the officer
breach the duty of fairness owed to the applicant by failing to convoke an
oral hearing?
- Was the right to
protection from cruel treatment violated by imposing on the applicant a
cruel choice?
- Did the officer
conduct a faulty analysis of the risk to the applicant from her refusal to
submit her child to genital mutilation?
Analysis
1. Accumulation of Weight
[19]
Ms. Nakawunde submits that the officer erred by
dismissing each piece of evidence as having little or no weight without considering
the cumulative effect. This, she submits is an error and renders the decision
unreasonable: Ozen v Canada (Minister of Citizenship and Immigration),
2002 FCT 521, and Tolu v Canada (Minister of Citizenship and Immigration),
2002 FCT 334. It is submitted that the duty to consider evidence cumulatively
is a general duty and decision-makers should consider documentary evidence as a
whole.
[20]
A full reading of the PRRA decision in the
context of the facts before the officer satisfies me that the officer did not
take a piecemeal approach. Rather, the officer considered each piece of
evidence, made a finding about the probative value of it and then weighed all of
the evidence together to conclude that it was insufficient to prove the
allegations on a balance of probabilities.
[21]
The applicant submits that the officer’s
statements of having given the individual bits of evidence little weight fails
to regard the evidence cumulatively and observes that “a
pound of feathers weighs the same as a pound of lead.” This metaphor
ignores that a collection of feathers may still not be sufficient to tip the
balance of probabilities in favour of an applicant. That was the officer’s
conclusion in the decision under review.
2. Sexual Orientation
[22]
Ms. Nakawunde submits that the officer’s
assessment of the evidence related to the risk due to her homosexuality was
incoherent because the officer found both that the she “may
well be homosexual” and that she had not proved she was homosexual. The
applicant cites my earlier decision in Ferguson v Canada (Minister of
Citizenship and Immigration), 2008 FC 1067 [Ferguson], and says that
the court laid out three alternate means of approaching evidence (a credibility
assessment, a weight assessment, or a combination of the two). The applicant
submits that, since her statement that she is a lesbian is “first party information” (unlike the example given in
Ferguson), there should be no distinction between rejecting the
evidence based on either credibility or probative value. She submits that Ferguson
is distinguishable because the only evidence of that applicant’s sexual
orientation was a statement by counsel and the officer made no reference to
credibility, deciding the matter on the sufficiency of evidence. In the
present case, Ms. Nakawunde points out that she provided evidence herself and she
says that the officer directly addressed her credibility by finding that she
may be homosexual. She submits that the officer’s reasoning is nonsensical
because if the officer is prepared to assume that she is homosexual, there is
nothing left to establish.
[23]
Ms. Nakawunde further submits that in employing
this reasoning, the officer made a veiled credibility finding. If the officer
had believed her, then the officer would likely have found that she was at risk
given the country condition evidence. She argues that her evidence that she
had told her immediate family that she is a lesbian, that Sanyu’s father
resents the fact that she is gay, and that she sought assistance from a
Canadian organization serving lesbians was not considered by the officer, and
the officer had no regard to the counsellor’s evidence that “many lesbians have children from heterosexual
relationships.” In short, she argues that if the court looks beyond the
wording of the officer’s decision, it is clear that the officer made a veiled
credibility finding.
[24]
I agree with the position of the respondent.
What the applicant is really challenging here is the officer’s assessment of
the probative value of her evidence regarding her sexuality, there is no incoherence
in the officer’s reasons, and that the officer did not make a veiled
credibility finding.
[25]
As was held in Ferguson, an officer may
deal with evidence by assessing credibility or by assessing its probative value
regardless of credibility. In the present case, the officer clearly stated
that he was not making a credibility finding, but rather that applicant’s
evidence of her sexual orientation was rejected based on its probative value.
[26]
At first blush it may appear that there is a
difference between, for example, an officer finding that a claimant claiming to
be an adherent of Falun Gong has not established that on the balance of probabilities,
and an officer finding that a claimant claiming to be homosexual has not
established that on the balance of probabilities. Perhaps that is because of
the very personal nature of one’s sexual orientation. However, as the respondent
notes, there have been many cases where the court upheld a PRRA officer’s
finding that the applicant provided insufficient evidence about facts that were
not external to them: See for example Gao v Canada (Minister of Citizenship
and Immigration), 2014 FC 59, Ozomma v Canada (Minister of Citizenship
and Immigration), 2012 FC 1167, Titfticki v Canada (Minister of
Citizenship and Immigration), 2014 FC 43, and Ferguson.
[27]
Notwithstanding the counsellor’s letter asserting
that many lesbians have children from heterosexual relationships, the evidence
before the officer was that this applicant had two such children – a 22 year
old son in Uganda and an 11 year old daughter in Canada. There was no
objective or corroborative evidence of the applicant having any lesbian
relationship, either in Uganda or Canada. There was no evidence of her sexual
orientation other than her own statement and the unsigned and unsworn letter
from her brother (which had been given little weight). In my view, the
officer’s assessment that she had failed to establish on the balance of
probabilities that she was a lesbian is reasonable. As to the officer’s
statement that “she may well be homosexual” that
must be viewed in light of the decision as a whole and what the officer clearly
means is “she may well be homosexual, but she has not
proven it.”
3. Convoking an Oral Hearing
[28]
Section 113 of the Act and section 167 of the Immigration
and Refugee Protection Regulations, SOR/2002-227 mandates the requirement
for an oral hearing where there is an issue of credibility. Having agreed with
the respondent that the officer did not make a veiled credibility finding,
there was no requirement to convoke an oral hearing.
4. Cruel Treatment by Imposing a Cruel Choice
[29]
Ms. Nakawunde submits that the officer erred by
failing to consider whether her removal would subject her to cruel and unusual
treatment since it would present her with a “cruel
choice” – to either bring Sanyu to Uganda where she would be at risk of
FGM or to leave Sanyu in Canada and be separated from her child. She submits
that harm incidental to removal falls within section 97 and that to force a
person to make a cruel choice is cruel in and of itself including the mental
harm that this choice will cause her.
[30]
I agree with the respondent that this is not a
prospective risk contemplated by section 97 of the Act; rather, these are
considerations relevant to a humanitarian and compassionate application for
relief under the Act. The PRRA officer’s role is to assess risk and this does
not involve consideration of other factors. In any event, there is no
objective medical evidence to show that a separation from Sanyu will cause
damage other than the usual difficulty caused by family separation, which is a
natural consequence of deportation. Further, as the respondent argues, the
separation is not permanent because the applicant will be able to return to
Canada without written authorization one year after removal.
5. Risk to the Applicant in Refusing to Submit
her Child to FGM
[31]
Ms. Nakawunde submits that the officer did not
assess the risk posed by Sanyu’s father due to her refusal to allow Sanyu to
undergo FGM. She says that this risk will be present regardless of whether
Sanyu goes to Uganda or not as leaving Sanyu in Canada would also be a form of
refusal. She argues that the conclusion of the officer that the risk from
Sanyu’s father was “not supported by any evidence,”
disregards her own evidence.
[32]
The respondent observes that the officer’s
findings in this regard “are not written with the
clarity that would be required of a more formal tribunal,” but says that
they are sufficiently clear to allow the court to understand that the
applicant’s evidence was not sufficient to establish that Sanyu’s father had
threatened and harassed her and her family. Therefore, it is submitted, the
officer’s conclusion that he or she was not satisfied that the applicant faced
a risk from Sanyu’s father was within the range of possible, acceptable
outcomes.
[33]
I agree with the applicant that the officer does
not make an express finding on this question; however, it is clear from the
reasons as a whole and the assessment of the weight given, that the officer
found that there was insufficient evidence to establish the risk in question.
Certified Questions
[34]
The applicant proposed three questions for
certification:
1. Does
section 97(1)(b) of the Immigration and Refugee Protection Act encompass
the harm of requiring a parent subject to removal to choose between leaving a
child behind in Canada and subjecting the child to risk of harm on bringing the
child with the parent to the country of removal?
2. Is
section 97(1)(b) limited to the person to be removed in the country of removal
or can it encompass harm in Canada to the person to be removed?
3. Is
the requirement to consider evidence cumulatively restricted to considering
evidence of harassment and discrimination, or does the requirement apply to
evidence on any matter?
[35]
I agree with the respondent that questions 1 and
2 are not serious questions because the Act and jurisprudence is clear that section
97(1)(b) of the Act looks to harm or risk in the country of removal – not to
harm in Canada.
[36]
I also agree with the respondent that question 3
cannot be certified. The law is established as the applicant suggests, namely
that all evidence relevant to a factual issue is to be examined cumulatively.
In any event, it has been found that the officer did so in this case and thus
this question is not determinative of any appeal of this decision.
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